Allahabad High Court
State Of U.P. And Another vs The A.D.J. Sonbhadra And Ors. on 23 October, 2019
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 6 Case :- WRIT - C No. - 36416 of 1995 Petitioner :- State Of U.P. And Another Respondent :- The A.D.J. Sonbhadra And Ors. Counsel for Petitioner :- Prabodh Gaur,C.S.C.,Sanjai Goswami Counsel for Respondent :- S.C.,H.M.Srivastava,O.P.Singh Hon'ble Yashwant Varma, J.
Heard Sri Sanjai Goswami, the learned Additional Chief Standing Counsel and Sri Rajesh Srivastava, learned Standing Counsel for the State and Sri O.P. Singh, learned Senior Advocate who has appeared for the respondents.
This petition challenges the orders dated 30 January 1993 and 24 May 1994 passed by the Additional District Judge. The challenge itself arises in the backdrop of proceedings taken in District Sonbhadra pursuant to the procedure as evolved and laid in place by the Supreme Court in Banwasi Sewa Ashram Vs. State of U.P. And Others1. The challenge arises in the context of the proposal of the State to constitute a reserved forest in accordance with the provisions made in the Indian Forest Act, 19272. On the record the Court finds an order dated 15/16 May 1950, issued by the Deputy Secretary in the Government of Uttar Pradesh and addressed to the Secretary, Board of Revenue conveying to him the sanction of the Governor to the transfer of the "Dudhi Forest" from the control and administration of the Revenue Department to the Department of Forest. The document stands testimony to the fact that the Dudhi Forest was under the control and administration of the State Government from prior to the date of this communication. On 4 July 1970, the State proceeded to issue a notification under Section 4 of the 1927 Act embodying its intent to constitute a reserved forest in the district. The land over which the respondent claims interest admittedly forms part of this notification. It appears that asserting that he had been in continuance possession of this land and was also cultivating the same, he approached the Forest Settlement Officer for a declaration in respect of his status and title which was granted on 30 August 1986. In terms of this order, the Forest Settlement Officer is stated to have recognized the respondent to be a bhumidhar in possession over the land in question.
It is pertinent to note that in the meanwhile the Supreme Court received a letter on or about 1983 which was treated as a petition under Article 32 of the Constitution. The grievance which was raised in that letter was in respect of the rights of tribals and traditional forest dwellers who were deprived of their status and rights of possession and cultivation over lands which had come to be included in notifications issued under Section 4 of the 1927 Act by the State Government. The Supreme Court was apprised that tribals and other individuals in possession of the land had been deprived of their right without the statutory procedure of due enquiry and settlement of claims having been undertaken. Entertaining that challenge the Supreme Court on 22 August 1983 passed the following interim order:
"The writ petition is adjourned to October 4, 1983 in order to enable the parties to work out a formula under which claims to Adivasis or tribals in Dudhi and Robertsganj Tehsils, to be in possession of land and to regularisation of such possession may be investigated by a high powered committee with a view to reaching a final decision in regard to such claims. Meanwhile, no further encroachments shall be made on forest land nor will any of the Adivasis or tribals be permitted under colour of this order or any previous order to cut any trees and if any such attempt is made, it will be open to the State authorities to prevent such cutting of trees and to take proper action in that behalf but not so as to take away possession of the land from the Adivasis or tribals."
The case before the Supreme Court proceeded further and ultimately after taking into consideration the reports of the Commissioners submitted to it and the peculiar facts of the case as appearing before it, it framed detailed directions for the consideration and disposal of claims that were to be raised. Those directions as embodied in its detailed decision of 20 November 1986 rendered on that petition read thus:
"(1) So far as the lands which have already been declared as reserved forest under Section 20 of the Act, the same would not form part of the writ petition and any direction made by this Court earlier, now or in future in this case would not relate to the same. In regard to the lands declared as reserved forest, it is, however, open to the claimants to establish their rights, if any, in any other appropriate proceeding. We express no opinion about the maintainability of such claim.
(2) In regard to the lands notified under section 4 of the Act, even where no claim has been filed within the time specified in the notification as required under section 6(c)of the Act, such claims shall be allowed to be filed and dealt with in the manner detailed below:
I. Within six weeks from December 1, 1986, demarcating pillars shall be raised by the Forest Officers of the State Government identifying the lands covered by the notification under Section 4 of the Act. The fact that a notification has been made under Section 4 of the Act and demarcating pillars have been raised in the locality to clearly identify the property subjected to the notification shall be widely publicised by beat of drums in all the villages and surrounding areas concerned. Copies of notices printed in Hindi in abundant number will be circulated through the Gram Sabhas giving reasonable specifications of the lands which are covered by the notification. Sufficient number of inquiry booths would be set up within the notified area so as to enable the people of the area likely to be affected by the notification to get the information as to whether their lands are affected by the notification, so as to enable them to decide whether any claim need be filed. The Gram Sabhas shall give wide publicity to the matter at their level. Demarcation, as indicated above, shall be completed by January 15,1987. Within three months therefrom, claims as contemplated under section 6(c) shall be received as provided by the statute.
II. Adequate number of record officers shall be appointed by December 31, 1986. There shall also be five experienced Additional District Judges, one each to be located at Dudhi, Muirpur, Kirbil of Dudhi Tehsil and Robertsganj and Tilbudwa of Robersganj Tehsil. Each of these Additional District Judges who will be spared by the High Court of Allahabad, would have his establishment at one of the places indicated and the State shall provide the requisite number of assistants and other employees for their efficient functioning. The learned Chief Justice of the Allahabad High Court is requested to make the services of five experienced Additional District Judges available for the purpose by December 15, 1986 so that these officers may be posted at their respective stations by January 1, 1987. Each of those Additional District Judges would be entitled to 30 per cent of the salary as allowance during the period of their work. Each Additional District Judge would work at such of the five notified places that would be fixed up by the District Judge of Mirzapur before December 20, 1986. These Additional District Judges would exercise the powers of the Appellate Authority as provided under section 17 of the Act.
III. After the Forest Settlement Officer has done the needful under the provisions of the Act, the findings with the requisite papers shall be placed before the Additional District Judge of the area even though no appeal is filed and the same shall be scrutinized as if an appeal has been taken against the order of the authority and the order of the Additional District Judge passed therein shall be taken to be the order contemplated under the Act.
3. When the Appellate Authority finds that the claim is admissible, the State Government shall (and it is agreed before us) honour the said decision and proceed to implement the same. Status quo in regard to possession in respect of lands covered by the notification under Section 4 shall continue as at present until the determination by the appellate authority and no notification under Section 20 of the Act shall be made in regard to these lands until such appellate decision has been made."
It becomes pertinent to note that the Supreme Court at the very outset clarified that the directions as framed would have no application to land which had already come to be included in a final notification issued under Section 20 of the 1927 Act. The directions consequently stood confined to land notified under Section 4 and in respect of which settlement proceedings had not concluded. The detailed directions framed inter alia provided for survey and settlement operations being undertaken by the FSO's in accordance with the statutory obligations placed under the 1927 Act, the appointment of adequate number of survey officials, the publication of notices in the area of the proposal of the Government to create a reserved forest and the establishment of special courts manned by Additional District Judges to facilitate the process of adjudication of claims. The Supreme Court, in a significant departure from the adjudicatory procedure otherwise provided for under the 1927 Act, provided that all orders that may come to be passed or made by the FSO's would be mandatorily placed for the consideration and scrutiny of the Additional District Judges concerned and treated as suo moto appeals. It was further provided that the decision taken by the Additional District Judges on these suo moto appeals shall be taken to be the final orders as contemplated under the 1927 Act. The special procedure was evolved principally to protect the interests of the large number of tribals and traditional forest dwellers who otherwise were handicapped in seeking legal redress for protection of their rights by virtue of their social status.
It would also be relevant to advert to another order passed on 8 February 1989 in Banwasi Sewa Ashram, where the Supreme Court held that land which had been included in a notification issued under Section 4 of the 1927 Act, would also be subject to the rigours of Section 2 of the Forest Conservation Act, 19803 which had in the meantime been promulgated. The Court takes note of this order since it would be of some significance while evaluating the correctness of the submissions which were advanced.
Reverting back to the issue of settlement of claims in accordance with the procedure evolved by the Supreme Court, it appears that on the detailed directions being brought to the attention of the respondents, the order of 30 August 1986 conferring the status of bhumidhar on the private respondents was recalled by the FSO on 25 February 1992. In the meanwhile and pursuant to the process of settlement that was initiated in accordance with the procedure prescribed in Banwasi Sewa Ashram, the claim of the respondent fell for consideration before the FSO. The FSO in his order of 26 March 1992 noted that the respondent rested his claim solely on the order of the Forest Settlement Officer, which had already been annulled on 25 February 1992. It noted that the nature of the land was such that it was suitable to be included and made part of the proposed reserved forest and consequently upheld the inclusion of the land in the notification issued under Section 4. In accordance with the procedure laid down in Banwasi Sewa Ashram, that order was then placed before the Additional District Judge for scrutiny by way of a suo moto appeal. The Additional District Judge on 30 January 1993 proceeded to reverse the decision of the FSO and held that since the earlier spot inspection had found the petitioner to be in possession of the land and having partly cultivated it, the plot in question was liable to be excluded from the proposed reserved forest.
In the meanwhile, the Supreme Court while in seisin of proceedings in Banwasi Sewa Ashram took note of various complaints that were made with respect to the manner in which settlement proceedings had moved forward. It took note of the complaints made both by landholders as well as the Forest Department of apparent and patent errors having been committed by the FSO's in the disposal of claims. Bearing those complaints in mind, on 10 May 1991 it passed the following order:
"... It appears that there have been taken some instances where decisions have been taken but they required to be reviewed. Both the parties, counsel for the parties agrees, that review can be filed within 30 days from today and if so filed the plea of limitation shall not avail...."
The complaints with respect to settlement proceedings were yet again noticed by it in its order dated 16 February 1993, when it proceeded to frame the following additional directions:
"4. The reports of the Commissioners (January 1, 1993) and of Justice Loomba reveal that there have been some errors whereby rights of non-occupants have been recorded without on-the-spot inspection, hearings and to the prejudice of the actual occupants on the spot. The Commissioners and Justice Loomba have identified 17 forest villages in this respect which are as under:
1. Chattarpur
2. Goetha
3. Jaampani
4. Dhuma
5. Sukhra
6. Supachuan
7. Naudiha
8. Madhuvan
9. Karhiya (Dudhi)
10. Nagwa
11. Gulaljharia
12. Kudri
13. Ghaghri
14. Kirbil
15. Sagobaandh
16. Jarha
17. Bailhathhi Agreeing with the Reports of the Commissioners, Justice Loomba and the contentions of Mr. Rajiv Dhawan, learned counsel for the petitioner, we direct that special review be undertaken in the above 17 villages only in respect of those cases where there are complaints from the individuals and the errors are patent on the record. The Forest Department shall also be at liberty to ask for special review in the cases pertaining to the above villages where according to the Department records have not been correctly prepared."
On 4 October 1993, the Supreme Court was apprised by the Department of Forest that various orders passed by the Forest Settlement Officer and the Additional District Judges merited review and reconsideration. Dealing with that prayer it entered the following observations in its order of 4 October 1993: -
"......He seeks directions from this court for the review of those cases. The forest department may bring those cases to the notice of the Additional District Judge, who shall consider those cases in accordance with law....."
These three orders are also of significant import since the 1927 Act otherwise did not confer any right of a substantive review on the adjudicatory authorities constituted under that enactment. The State in purported exercise of the liberty granted by these orders preferred a petition for review before the Additional District Judge. That review petition has been dismissed on 24 May 1994. It is in the above backdrop that the instant writ petition came to be preferred challenging the orders passed by the Additional District Judge originally as well as on the review petition preferred thereafter.
Appearing in support of the petition, Sri Goswami, the learned Additional Chief Standing Counsel has submitted that the review was liable to be granted since on both occasions the Additional District Judge had failed to either allude to or consider the fact that the order made in favour of the respondent by the FSO on 30 August 1986 no longer survived having been recalled on 25 February 1992. It was submitted that the spot inspection report which was referred to in those proceedings was the same on which the order of 30 August 1986 rested. It was contended that in any case no rights could be recognized as having accrued in favour of the respondent post the issuance of the notification under Section 4 on 4 July 1970. According to Sri Goswami, the rights which had been claimed by the respondent on the basis of possession could not have been accorded recognition in law in view of the provisions made in Section 5 of the 1927 Act. Section 5 as amended in its application to the State of U.P. vide Act No. 23 of 1965 reads thus: -
"5. Bar of accrual of forest rights.-- After the issue of notification under section 4 no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or a contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land, nor any tree therein felled, girdled, lopped, tapped, or burnt, or its bark or leaves stripped off, or the same otherwise damaged, nor any forest-produce removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf."
It is pertinent to note that while Section 5 in the principal enactment stops at restraining individuals from clearing land included in a Section 4 notification for cultivation or any other purpose, the U.P. Amendment travels further and injuncts persons from cutting or felling trees or removing forest produce from such land. According to Sri Goswami there was an abject failure on the part of the respondent to establish any right or title over the land existing from prior to the issuance of the notification under Section 4. Sri Goswami drew the attention of the Court to the fact that the nature of the land as was found to exist on the spot was duly taken into consideration by the FSO in his order of 26 March 1992 and that the Additional District Judge clearly erred in overturning that verdict and failing to grant the prayer for review as made.
Refuting those submissions, Sri O.P. Singh, learned Senior Counsel who has appeared for the private respondent addressed the following submissions. According to Sri Singh, the Court must bear in mind that no provision of the 1927 Act grants a power of substantive review on the Appellate Authority. The power to undertake a substantive review, it was contended, must be statutorily conferred and cannot be available to be exercised in the absence of a specific provision in that respect being made in the statute. Sri Singh referring to the order of 4 October 1993 submitted that the direction of the Supreme Court was not liable to be viewed as conferring on the Additional District Judge the authority to undertake a substantive review. He submits that after noticing the contentions addressed it was only observed in that order that it would be open to the Forest Department to approach the Additional District Judges by way of an appropriate application that may be considered and disposed of "in accordance with law". According to Sri Singh, the tenor of the directions and observations entered in that order establishes that the question of the maintainability of the review petition was not decided and it was left open to the Additional District Judges to consider any application that the Forest Department chose to make in accordance with law. In view thereof it was submitted that the Additional District Judge could not have entertained the review petition. According to Sri Singh once the Additional District Judge had proceeded to allow the claim of the respondent on 30 January 1993 the same attained finality and therefore could not have been reviewed.
Sri Singh has further placed reliance upon the provisions made in Section 131-A of the U.P. Zamindari Abolition and Land Reforms Act 19504 to submit that notwithstanding the orders passed by the authority in proceedings undertaken under the 1927 Act, the law itself accords protection to persons like the respondent in cultivatory possession of land and the extension of bhumidhari rights albeit on a non transferable basis. That provision is in the following terms: -
"131-A. Bhumidhari rights in Gaon Sabha or State Government land in certain circumstances.--Subject to the provisions of Section 132 and Section 133-A, every person in cultivatory possession of any land, vested in a Gaon Sabha under Section 117 or belonging to the State Government, in the portion of District Mirzapur South of Kaimur Range, other than the land notified under Section 20 of the Indian forest Act, 1927, before the 30th day of June, 1978, shall be deemed to have become a Bhumidhar with non-transferable rights of such land.
Provided that where the land in cultivatory possession of a person, together with any other land held by him in Uttar Pradesh exceeds the ceiling area determined under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960, the rights of a Bhumidhar with non-transferable rights shall accrue in favour of such person in respect of so much area of the first-mentioned land, as together with such other land held by him, does not exceed the ceiling area applicable to him and the said area shall be demarcated in the prescribed manner in accordance with the principles laid down in the aforesaid Act."
Sri Singh placing reliance upon the provisions made in Section 131-A has submitted that in light of the statutory protection accorded and extended, no cause arises for this Court to interfere with the order ultimately passed by the Additional District Judge in the suo moto appeal. It was lastly urged that a reserved forest could not be viewed as land falling within the ambit of Section 132 of the 1950 Act since it essentially remains land per se till it is actually declared as reserved forest under Section 20 of the 1927 Act. This submission was addressed in light of the benefits extended by Section 131A being made subject to the provisions of Section 132 of the 1950 Act. Section 132 of the 1950 Act reads thus: -
"132. Land in which [bhumidhari] rights shall not accrue.- Notwithstanding anything contained in Section 131, but without prejudice to the provisions of Section 19, [bhumidhari] rights shall not accrue in--
(a) pasture lands or lands covered by water and used for the purpose of growing singhara or other produce or land in the bed of a river and used for casual or occasional cultivation;
(b) such tracts of shifting or unstable cultivation as the State Government may specify by notification in the Gazette; and [(c) lands declared by the State Government by notification in the Official Gazette, to be intended or set apart for taungya plantation or grove lands of a [Gaon Sabha] or a local authority or land acquired or held for a public purpose and in particular and without prejudice to the generality of this clause--
(i) lands set apart for military encamping grounds;
(ii) lands included within railway or canal boundaries;
(iii) lands situate within the limits of any cantonment;
(iv) lands included in sullage farms or trenching grounds belonging as such to a local authority;
(v) lands acquired by a town improvement trust in accordance with a scheme sanctioned under Section 42 of the U.P. Town Improvement Act, 1919 (U.P. Act VII of 1919), or by a municipality for a purpose mentioned in clause (a) or clause (c) of Section 8 of the U.P. Municipalities Act, 1916 (U.P. Act VII of 1916); and
(vi) lands set apart for public purposes under the U.P. Consolidation of Holdings Act, 1953 (U.P. Act V of 1954).]"
Before proceeding to deal with the rival submissions noted above, it would be apposite to notice certain noteworthy statutory and judicial interventions with regard to the subject of forests that intervened. The proceedings in Banwasi Sewa Ashram progressed during a period when the 1980 Act had already come to be promulgated. The statutory interdict enshrined in Section 2 of that enactment represents a momentous measure of "we the people" to preserve and protect forests and the environment. This singular provision finally gave effect to the constitutional obligation placed upon the State by virtue of Article 48A of the Constitution. Section 2, seemingly unpretentious and yet pregnant with purpose and intent, stipulates as follows: -
"2. Restriction on the de-reservation of forests or use of forest land for non-forest purpose.-- Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing,--
(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;
(ii) that any forest-land or any portion thereof may be used for any non-forest purpose;
[(iii) that any forest-land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;
(iv) that any forest-land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.]"
From a historical perspective, the development of the jurisprudence on the subject of environment protection would be incomplete if one were to ignore the epoch making decision handed down by the Supreme Court on 12 December 1996 in T.N. Godavarman Thirumulpad Vs. Union of India5 when it held: -
"4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest" must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213] , Rural Litigation and Entitlement Kendra v. State of U.P. [1989 Supp (1) SCC 504] and recently in the order dated 29-11-1996 (Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority [ WP (C) No 749 of 1995 decided on 29-11-1996] ). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi [(1985) 3 SCC 643] has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority......"
Again on 13 November 2000, the Supreme Court in Centre for Environmental Law Vs. Union of India6 passed the following order: -
"Four weeks for filing of affidavits by the States that have not already done so. List after 5 weeks. Pending further orders, no dereservation of forests/Sanctuaries/National Parks shall be affected."
In one sense the decisions and orders referred to above followed the trend which was set in the 8 February 1989 order of the Supreme Court in Banwasi Sewa Ashram which had held that land covered under a notification issued under Section 4 of the 1927 Act would also be covered by the prohibition imposed by Section 2 of the 1980 Act. It was these orders and the prevailing statutory regime that governed the field when the settlement proceedings forming subject matter of the instant writ petition were progressing before the FSO and the Additional District Judges. Having sketched the backdrop in which the impugned proceedings ensued before the authorities, the Court now proceeds to rule on the submissions addressed by respective parties.
Dealing firstly with the question of maintainability of the review petition, the Court notes that the provisions engrafted in the 1927 Act do not make a specific provision of substantive review being exercised by the authorities constituted thereunder. However, the Court also bears in mind that the 1927 Act also does not envisage a suo moto appeal being preferred or entertained by the Additional District Judge either. The facts which were obtaining in the region in which the reserved forest was proposed to be created, the manner in which the rights of tribal and traditional forest dwellers were overlooked and trodden over constrained the Supreme Court to modify the statutory procedure put in place by the 1927 Act. It was the special procedure formulated and evolved by the Supreme Court and put in place by virtue of its decisions and orders rendered from time to time in Banwasi Sewa Ashram that governed the field. It was this unique and distinctive process of adjudication as evolved therein that was mandated to be adhered to by the adjudicating authorities while processing claims laid under the 1927 Act. It was this exceptional process of adjudication in terms of which all decisions taken by the FSO were liable to be placed before the Additional District Judge for scrutiny, appraisal and confirmation. The orders passed in Banwasi Sewa Ashram thus constituted the source and foundation for the authority which was to be exercised by the FSO's and Additional District Judges. The consequential question to be posed would, therefore, be whether those orders empowered the Additional District Judges to exercise powers of review.
The Court finds that indubitably the orders of 10 May 1991 and 16 February 1993 made in Banwasi Sewa Ashram, the Supreme Court in unambiguous terms provided for individuals as well as the Department of Forest to prefer review petitions in those cases where mistakes and errors apparent on the face of the record were alleged to exist. The Supreme Court took note of the Reports of the Commissioners and Justice Loomba submitted on 1 January 1993, which had found that the settlement orders made in 17 forest villages suffered from manifest errors. These orders conferred a right on both the landholder as well as the Department of Forest to petition the Additional District Judge by way of review applications. The Supreme Court clearly permitted the Forest Department to move the Additional District Judges by way of "special review". It is also pertinent to note that while the orders of 10 May 1991 and 16 February 1993 granted this right to both individuals as well as the Department of Forest, the last order which is adverted to, namely, of 04 October 1993 only dealt with the grievance of the Department of Forest where it alleged that a review was mandated in numerous cases. It was these orders that conferred the right on individuals and the Forest Department to petition the Additional District Judges by way of a special review. The exercise of settlement and adjudication was an ongoing process being monitored and overseen by the Supreme Court and the directions issued from time to time aimed at ensuring purity of the adjudicatory process. These orders conferred a substantive right on parties to seek review of the orders passed by the Additional District Judges. The right so conferred was entitled to be exercised notwithstanding the absence of a statutory provision made in that regard in the 1927 Act. The orders alluded to above constituted the fountainhead and the source of the right of special review that was exercised by the petitioners here. In light of the aforesaid, the Court comes to conclude that the review applications were maintainable and were rightly entertained notwithstanding the fact that no statutory provision in that respect existed in the 1927 Act.
That then takes the Court to deal with the submission addressed in the backdrop of Section 131-A of the 1950 Act. Section 131-A was initially promulgated by way of Ordinance No. 7 of 1987. It was ultimately introduced in the statute by virtue of U.P. Act 14 of 1987. Section 131A principally extends protection to those persons who were found to be in cultivatory possession of land in the portion of District Mirzapur South of the Kaimur Range prior to 30 June 1978 and confers on such individuals the status of a bhumidhar with non transferable rights on such land. Whether this provision would be sufficient to safeguard the asserted interest of the private respondent is the issue that consequently falls for determination. While dealing with this question it would be apposite to bear in mind the fact that by the time that this measure was introduced, the 1980 Act already stood in place. The rights which are claimed by the respondents in terms of its provisions would merit examination and evaluation from a dual perspective- firstly, on the basis of the language of the section itself and other attendant provisions of the 1950 Act and secondly, in the backdrop of the statutory regime governing forests which otherwise exists.
On a plain reading of Section 131A, it is evident that the provision is neither stated to have overriding effect over the other parts of the 1950 Act nor is it worded to be in supersession of other statutes that may operate on the subject of forests. As is manifest, that provision is not worded so as to apply notwithstanding a prohibition or restraint contained in any other enactment which touches the field of forests and rights that may accrue on land on which forests may exist. In its barest form, Section 131A seeks to protect the possession of persons on land which may vest in a Gaon Sabha by virtue of Section 117 of that Act. Section 117 provides that the State Government may by a general or special order vest in a Gaon Sabha or other local authority land that had come to vest with it upon promulgation of the 1950 Act. It becomes relevant to recall that Section 4 of the 1950 Act envisaged the vesting of all estates situate in the State with the Government upon abolition of zamindari. Section 117 while enumerating the categories of vested land that may be transferred not just speaks of forests but also of land cultivable or otherwise, trees, fisheries, ponds, tanks, water channels, pathways and abadi sites. Consequently when Section 131A refers to land vesting in a Gaon Sabha under Section 117, it cannot be understood as being with regard to possession of persons upon forests alone. Possession of a person may be found to exist even on land cultivable or otherwise or on any other category of estates vesting in the State.
The second internal control on the benefit conferred by that provision is manifest from its opening lines itself which makes its provisions subject to Sections 132 and 133A of the 1950 Act. Section 132 of the 1950 Act essentially declares that bhumidhari rights shall not accrue upon the categories of land enumerated therein. This statutory interdict also applies to land declared or held by the Government for a public purpose in terms of Section 132 (c). It would be pertinent to recollect that the land forming subject matter of the instant writ petition formed part of the "Dudhi Forest" which was transferred by the State Government from the Department of Revenue to the Forest Department on 15/16 May 1950, a fact noted in the introductory part of this judgment. It is therefore apparent that a forest under the ownership and control of the State of U.P. existed in 1950 itself. Clearly, therefore, in 1950 the State of U.P. held land which constituted a forest. That the creation and preservation of forests is a constitutional obligation and would clearly constitute a public purpose cannot possibly be disputed. Significantly, clause (c) of Section 132 while expanding upon the categories which would constitute land held for a public purpose employs the phrase "..in particular and without prejudice to the generality of this clause...". It is thus evident that clause (c), while specifying categories of lands held for a public purpose, is not exhaustive but merely illustrative. On a foundational plane, therefore, the Court finds it difficult to accept the proposition that possessory rights claimed on forests were entitled to be perfected by virtue of Section 131A. The problem, however arises on account of that provision specifically referring to land in respect of which a notification under Section 20 of the 1927 may not have been issued and thus evincing an intent to extend the coverage of Section 131A even to forests.
The Court finds that there is no explicit or straightforward expression of intent to extend the benefits of that provision to land covered under Section 4 of the 1927 Act. Assuming that was the legislative intent, it was open for the Legislature to have said so plainly. It is apposite to note that the provision was introduced in 1987 by which time the 1980 Act was already in force and Section 2 thereof applied. It also becomes apposite to note that U.P. Act 14 of 1987 was not reserved for the assent of the President. More importantly, Parliament by virtue of Act No. 69 of 1988 introduced clause (iii) in Section 2 of the 1980 Act restraining State Governments from assigning forest land to persons by way of lease or otherwise. Of equal import is the order dated 8 February 1989 passed in Banwasi Sewa Ashram which clarified that land covered in a notification under Section 4 of the 1927 Act would also be subject to the rigours imposed by Section 2 of the 1980 Act. If Section 131A were to be conferred the interpretation as suggested by the respondents it would clearly breach the provisions of Section 2 of the 1980 Act.
The Court also bears in mind the decision rendered by the Supreme Court in Godavarman which explained the expression forest to be understood not just as defined in dictionaries but also to any land which answered the description of forest as generally understood as also land recorded as forest irrespective of ownership. The rights consequently claimed by virtue of Section 131A cannot be recognised as flowing unhindered by the restrictions imposed in that decision.
Viewed from the angle of the provisions engrafted in the 1927 Act, the Court notes that once the notification under Section 4 of the 1927 Act came to be issued on 4 July 1970, the statutory restraint comprised in Section 5 of that Act also applied. Section 5, it becomes important to recall, prohibits the acquisition of rights in or over land comprised in a Section 4 notification except by way of succession, grant, or contract in writing made by the Government. Section 131A as is evident does not override or eclipse the prohibition put in place by Section 5 of the 1927 Act. In order, therefore, to accord a harmonious construction upon Section 131A of the 1950 Act bearing in mind Section 5 of the 1927 Act, it must be interpreted to extend at best to land held in cultivatory possession from prior to the issuance of the notification under Section 4. The assertion of a right under Section 131A and a recognition thereof in law would also have to be tested on the anvil of Section 2 of the 1980 and the orders of the Supreme Court referred to above. The extent of protection which can be recognised cannot be viewed in the abstract and in any case cannot be adjudged without bearing in mind the provisions made in the 1927 and the 1980 Acts.
Undisputedly the State proceeded to issue the notification under Section 4 on 04 July 1970. From the moment that notification came to be promulgated the prohibition and bar as engrafted in Section 5 of the 1927 Act came to operate. That provision clearly mandates that no rights shall be acquired in or over the land comprised in such notification except by succession or under a grant of contract in writing made in that behalf by the Government. Consequently the position which emerges is that post 04 July 1970 no rights could have been acquired on land which came to be included in the notification under Section 4. It becomes pertinent to note that while the private respondent asserts to have been in possession of the land prior to its vesting under the provisions of 1950 Act, no material or evidence was either alluded to or brought to the attention of the Court. That material also does not appear to have been placed for the consideration of either the FSO or the Additional District Judge. This, the Court notes, since no such material or evidence was ever noticed by either the Forest Settlement Officer or the Additional District Judge in the orders which were framed. It has also come on the record that the initial order made by the FSO on 30 August 1986 was ultimately recalled by that authority on 25 February 1992. The respondent never assailed that order in any proceedings.
Reverting to the individual facts, the Court notes that the Additional District Judge on both occasions has clearly failed to bear in mind that the initial order passed by the FSO 30 August 1986 had itself been recalled by that authority subsequently. That subsequent order of 25 February 1992 has neither been alluded to nor considered. The respondent did not lead any other evidence that may have established that he had been in cultivatory possession from prior to 4 July 1970 when the notification under Section 4 came to be issued or from before 15/16 May 1950 being the order of the State Government transferring Dudhi Forest to the Forest Department. The Additional District Judge rests his decision solely on the spot inspection report which formed the basis of the original order which was ultimately recalled. The Additional District Judge also does not rest his decision on any other independent or cogent evidence which may have established that the factual position as found by the FSO was incorrect. Viewed in that backdrop, it is manifest that the prayer for review was clearly liable to be granted.
Accordingly and for the reasons noted, this writ petition shall stand allowed. The impugned orders dated 30 January 1993 and 24 May 1994 passed by the Additional District Judge, shall stand quashed and set aside. The order of the FSO dated 26 March 1992 shall stand affirmed and restored.
Order Date :- 23.10.2019 Arun K. Singh (Yashwant Varma, J.)